Petition seeking injunction against matai interfering with construction of house. High Court, Morrow, Chief Justice presiding, held that petitioner had right to live on communal land if she rendered service to matai and granted petition.

Injunction granted.

Samoan Custom-Family Membership-Burial on Family Land

Under Samoan custom, man buried on communal family land near house he lived in, despite request by other relatives that he be buried elsewhere, indicates family membership.

OPINION AND ORDER

Heard at Fagatogo on October 3, 1962 before MORROW, Chief Justice, and MALEPEAI and TAUALA, Associate Judges.

Afa, Counsel for Luisa Momoe.

Atofau pro se.

OPINION OF THE COURT

MORROW, Chief Justice.

Luisa filed her petition alleging. that defendant Atofau "had interfered with the construction" of a fale by her and her husband upon the land Olosea and also had "threatened" her and members of her immediate family. She prayed for an order restraining Atofau from interfering [4ASR306] with the construction of her fale. The Court viewed the land Olosea in the presence of the parties prior to the hearing.

Olosea is a part of a larger area named Lepuapua. It lies at the junction of the main east-west highway and the highway going to Taputimu from the main east-west highway. It lies to the south of the main east-west highway and to the west of the highway going to Taputimu. It was registered under the name Puapua as the communal family land of the Atofau Family in the case of Sei and Atofau of Leone v. Aumavae of Leone, No. 82-1948 (H.C. of Am. S.).

The defendant is the matai of the Atofau Family. The plaintiff Luisa is a daughter of Polevia who lived on Olosea (we shall call the land Olosea instead of Puapua, its registered name) during the mataiship of Noaese, the predecessor in title of the defendant, and also during the early part of the mataiship of the defendant. Polevia died in 1947 and was buried on Olosea by the express direction of the defendant who received his title in 1945. His grave is just a few yards from the house of the plaintiff on Olosea. Polevia was the first man to have his home on Olosea and to put up a house on it. Polevia and Luisa together had four houses on the land.

According to what we consider the weight of the evidence, Polevia's mother, according to Luisa, was Uula, who was the sister of Esekia who held the Atofau title just prior to Noaese. Noaese was the son of Esekia. While Atofau denied that Uula was a sister of Esekia, we cannot give very much weight to his testimony in that regard, particularly in view of the fact that Atofau first testified in the instant case that he belonged to the male branch of the family when his testimony in the case in which he was awarded the Atofau title (Kelemete v. Leala, No.14-1945 (H.C. of Am. S.)) shows that he testified then that he belonged to the female branch. When it was pointed out to him that he had testified that he was in the female branch [4ASR307] in the 1945 case, he changed his testimony. We think that matai Atofau who gives such contradictory testimony as to his own ancestry cannot be very reliable when he testified as to the ancestry of Luisa, particularly when the latter testimony relates to a matter that occurred two or three generations back. We are not suggesting' that Atofau knowingly gave false testimony. We think he was honest but very likely mistaken, his testimony relating to a mat ter far back in the history of the family and at the same time being based on mere hearsay.

Polevia rendered service to the Atofau title. Luisa, Polevia's daughter, was born in Olosea about 40 years ago. And she has lived on Olosea all of her 40 years. This is not to say that she has not visited away from Olosea at times. She herself rendered service to Noaese as did her father Polevia. Polevia with other Atofau family members put in plantations on Olosea. Luisa was present when Noaese died and she was Present at a family meeting when Kelemete was selected for the Atofau title.

We think that the weight of the evidence is to the effect that Polevia belonged to the Atofau Family. He lived on Atofau land; he is buried on it; he was brought to the land by Atofau Noaese; he rendered service to the title Atofau; he with other members of the Atofau Family put in plantations on Atofau communal family land. Some people of other families wanted him buried in Leone, but defendant Atofau Kelemete while he was the matai had him buried on Atofau land. We are fully aware that Atofau testified that the reason he was buried on Atofau land was because it was getting along toward evening when the burial was to take place. We do not believe, in view of Samoan customs, that if Polevia had not belonged to the Atofau Family that Atofau Kelemete would have had him buried on Atofau land just a few yards from the house he had built and lived in for many years, when at the time of the burial, people in [4ASR308] Leone, to whom Polevia was related, asked that he be buried there.

There was never any difficulty between Polevia and Noaese, nor between Luisa and Noaese. Luisa's difficulties with the matai began after Kelemete got the title. We think from the evidence that the present Atofau, the defendant, has used his mataiship to interfere with Luisa in the exercise of her rights.

The land Olosea does not belong to the matai Atofau. It belongs to the Atofau clan (family) of which there are many members. Atofau has no greater interest in communal family lands than any other member of the family. True, he is the matai, and his mataiship gives him in his capacity as matai the pule (jurisdiction) over family lands. A matai should never try to be a dictator over his family. He should be kind to family members. And they in turn should render him service. Atofau was unkind to Luisa. He uprooted her taamu and was unkind to her in other ways. She testified that Atofau ordered her off Olosea in 1961 and again in 1962. This was after she had lived on Olosea all of her life. It is significant that he did not order her off until 16 years after he got the Atofau title in 1945.

According to his testimony, Atofau is afraid that if this Court permits Luisa to complete her house on the Atofau land Olosea she will bring in strangers from Western Samoa and elsewhere to make their homes on Atofau land and that in the future Atofau Family members will have less land to use for homes and plantations and that that will cause difficulties for the family. We should like to point out that if Luisa should bring strangers to the land to make their homes on it and use it for plantations to the injury of the Atofau Family, then the matai, in view of his pule, could have them ousted from the land. Atofau does not have to furnish family land for stran[4ASR309]gers is pure speculation. Atofau does not, and cannot know whether she would or not.

It is our conclusion from the evidence that Luisa should be permitted to continue to construct her fale on the place where she has started to build it without interference by the matai; also that she should render service to her matai in accordance with Samoan customs.

ORDER

Accordingly, defendant Atofau Kelemete is hereby ORDERED not to interfere with plaintiff Luisa Momoe's construction of her fale at the place on Olosea where she has begun its construction.

Costs in the sum of $18.75 are hereby assessed against Atofau Kelemete, the same to be paid within 30 clays.

Plaintiff Luisa Momoe should render service to the Atofau title in accordance with Samoan customs. It is the duty of family members living on communal family land to render service.